Burleson v. District Court In and For Boulder County, 28244

• Citation: 586 P.2d 665,196 Colo. 455
• Decision Date: 13 November 1978
• Docket Number: No. 28244,28244
• Parties: Ethel C. BURLESON, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF BOULDER, State of Colorado, and the Honorable Horace B. Holmes, one of the Judges thereof, Respondents.
• Court: Supreme Court of Colorado

Page 665

586 P.2d 665

196 Colo. 455

Ethel C. BURLESON, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF BOULDER, State

of Colorado, and the Honorable Horace B. Holmes,

one of the Judges thereof, Respondents.

No. 28244.

Supreme Court of Colorado, En Banc.

Nov. 13, 1978.

Rehearing Denied Dec. 4, 1978.

Paul A. Dupler, St. Clair G. Strong, Jr., Boulder, for petitioner.

Martin, Knapple, Humphrey & Tharp, Richard A. Tharp, Boulder, for respondents.

LEE, Justice.

In this original proceedings, we issued our rule to show cause. The respondent district court has filed its answer, and brief in support thereof, and having considered the merits thereof we now make the rule absolute.

This controversy arose out of a separation agreement entered into and incorporated in a decree of divorce on June 15, 1970. The separation agreement provided for monthly alimony payments to petitioner.

On May 9, 1974, the parties, pursuant to their stipulation and agreement, modified the separation agreement, eliminating therefrom a provision which had set over to the petitioner a twenty-five percent interest in her former husband's business known as Building Materials Supermart. The stipulation modified the provision for alimony and required that the former husband pay to petitioner the sum of $650 per month in semimonthly payments of $325 each. The stipulation and agreement were then made an order of court.

Thereafter, a motion to reduce alimony was filed by the husband on the ground that there was a substantial change in his circumstances. After hearing, the motion was denied by the court on June 25, 1975.

On May 11, 1976, a further motion to reduce alimony on the ground of substantial change in circumstances was filed by the husband. After hearing, the respondent court found that there had been a substantial change in the ability of the husband to pay alimony. It therefore entered an order on August 17, 1977, reducing the alimony payments to $400 per month.

On January 20, 1978, petitioner filed her motion for reconsideration of the court's order reducing alimony. This motion was denied as being untimely. The court concluded:

"As a matter of law, the words and conduct of the parties demonstrate that their property settlement and alimony agreement, and the decree incorporating same, as modified, neither expressly nor impliedly deprived the Court of the power to make such modifications of alimony as are necessitated by the substantial change in circumstances, pursuant to § 14-10-112(6) and § 14-10-122, C.R.S.1973."

We hold that the respondent court erred in modifying the provision for payment of alimony as agreed upon by the parties to the divorce proceeding.

It is apparent from the conclusion of law above quoted that the respondent court believed that the disposition of this case was governed by sections 14-10-112 and 14-10-122, C.R.S.1973, of the Uniform Dissolution of Marriage Act. In this, the respondent court was in error. The Uniform Dissolution of Marriage Act specifically provides:

"This article shall take effect January 1, 1972, and shall apply only to actions affected by this article which are commenced on or after such date; all such actions commenced prior to said date shall be governed by the laws then in effect."

The divorce decree in this case was entered on June 15, 1970. We, therefore, look to the prior divorce Act (C.R.S.1963, 46-1-1, Et seq. ) and the interpretation thereof for determination of the alimony issue here present.

In our view, this matter...